The Executive, Legislative and Judiciary powers of the president: A Comparative Study

Submitted by Baby Ramya Muppirisetty Division: C, Roll No.36 Class BA,LLB Of Symbiosis Law School, NOIDA Symbiosis International University, PUNE In April 2012

Under the guidance of Prof. Sukhwinder Singh Co- faculty of Constitutional Law- II

CERTIFICATE
The project entitled The Executive, Legislative and Judiciary powers of the president: A Comparative Study submitted to the Symbiosis Law School, NOIDA for Constitutional Law- II as part of internal assessment is based on my original work carried out under the guidance of Prof, Ashmita Bisarya from 10 February to 4 April, 2012. The research work has not been submitted elsewhere for award of any degree. The material borrowed from other sources and incorporated in the thesis has been duly acknowledged. I understand that I myself could be held responsible and accountable for plagiarism, if any, detected later on.

Signature of the candidate

Date:

Acknowledgment

I owe a great many thanks to a great many people who helped and supported me during the completion of the project. My deepest thanks to Prof. Sukhwinder Singh the Guide of the project for guiding and correcting various documents of mine with attention and care. She has taken pain to go through the project and make necessary correction as and when needed. I would also thank my Institution and my faculty members without whom this project would have been a distant reality. I also extend my heartfelt thanks to my family and well wishers.

The Executive, Legislative and Judiciary powers of the president: A Comparative Study

Index:  Introduction
               The President Qualifications Emoluments and allowances of President Election of president Mode of voting Oath by the President Term of office of the president Procedure for impeachment of the President Privilege of the president Executive powers Legislative powers Judicial powers Emergency powers Military powers Diplomatic powers

 Powers of the president

 A Comparative Study  Conclusion

The Executive, Legislative and Judiciary powers of the president: A Comparative Study

Introduction:
The President: The executive powers of the Union are vested in the President, and he is required to exercise his powers according to the provisions of the Constitution. The President is the head of the Union. Since India is a Republic, the Constitution confers on the President the executive power of the Union Government, including the supreme command of the defence forces. The framers of the Constitution placed the President in a unique position. In theory, every affair of the state is to be exercised in the name of the President. However, in fact, the real executive authority is in the hands of Cabinet headed by the Prime Minister. The Cabinet is, in turn controlled by the Parliament. All the ministers, including the Prime Minister are members of Parliament, and are individually and collectively responsible to it. At the same time, the powers given to the President are also not negligible. Under certain circumstances, the President can assume a powerful role, as enshrined in the Constitution itself. Qualifications: The Constitution prescribes the qualifications for a candidate for the post of the President. Article 58 lays down the following qualifications, which a person must possess for being elected to the office of the President of India: (a) He must be a citizen of India; (b) He must have completed the age of 35 years; (c) He must be qualified for election as a member of the House of the People, i.e, he must be registered as a voter in any Parliamentary constituency; (d) He must not hold an office of profit under the Government of India, or the government of any state or under any local or other authority subject to the control of any of the said governments. However, the following persons shall not be deemed to hold any office of profit, and hence qualified for being a candidate for the office of President: (a) The President and Vice-President of the Union; (b) The Governor of any state; (c) The minister of the Union or of any state.

Emoluments and allowances of President: The president shall be entitled to use his official residence free of rent. He is also entitled to such emoluments „allowances and privileges as may‟ be determined by Parliament by law and until provision in that behalf is so made, such emoluments, allowances and privileges as are specified in the Second Schedule. The President‟s salary has been raised to Rs. 1,50,000 per month from Rs. 50,000 per month. His salary and allowances cannot be diminished during his term of office. Election of President: The President of India is not directly elected by the people. Article 54 provides that the President shall be elected by an electoral college consisting of the: (a) Elected members of both Houses of Parliament; and (b) Elected members of the legislative assemblies of the states. The Constitution (70th Amendment) Act, 1992 has added a new application to art 54 which provides that the word state includes the National Capital Territory of Delhi, and the Union Territory of Pondicherry. This means that the MLAs of the National Territory Delhi and the Union Territory will be included in the electoral college of the President. The nominated members of the above Houses at the Centre and the States do not have voting rights in the election of the President. The election of the President shall be held in accordance with the system of proportional representation by means of the single transferable vote [Art.55 (3)]. The system adopted for voting is secret ballot. The Constitution provides that as far as practicable there shall be uniformity in the scale of representation among the State inter se as well as parity between the States as a whole and the Union at the election of the President [Art.55 (I)]. For the purpose of securing such uniformity among the State and parity between the Union and States the formula is adopted: Every elected member of the Legislative Assembly of a State shall have as many votes as there are multiples of 1000 in the quotient obtained by dividing the population of the State by the total number of the elected members of Assembly. If by this division the remainder is 500 or more it will be counted as one and the vote of each member is increased by one. Thus the number of votes which an M.L.A. is entitled to cast in the Presidential election is based on the ratio of population of the State. The number of votes which each elected member of Parliament is entitled to cast shall be obtained by dividing the total number of votes of the Legislative Assemblies of all the States obtained under the above formula by the total number of the elected members of both Houses of Parliament. If by this division the remainder exceeds one-half it will be counted as one. This formula secures parity of votes between the members of Parliament and of the Legislative Assemblies of the States.

Mode of voting: Under the Constitution, the election of the President must be held in accordance with the system of proportional representation by means of the single transferable vote. The system adopted for voting is secret ballot. The voting system works in the following manner: Let us suppose that there are 4 candidates A, B, C, D, and the total number of valid votes 15,000. A candidate must secure at least 7,501 first preference votes that is, more than half the valid votes-to be declared elected. In the count A, B, C, D, has polled as follows: A – 5250 B – 4800 C – 2700 D – 2250 Here no candidate has secured a minimum of 7,501 votes. In this case D having obtained the least number of votes would be the first to be eliminated and the second preference votes recorded in his favour preference votes recorded in the votes of D are as follows: - A -300, B – 1050 and C – 900. These would be transferred and added to the first preference votes in favour of A, B, C as follows: A – 5250+300 = 5550 B – 4800+1050 = 5850 C – 2700+900 = 3600 Even in the second count no candidate could secure a minimum of 7,501. Here C having obtained the least number of votes is eliminated and the third preference votes recorded in his favour will once again be transferred to A and B. Suppose the third preference votes on the ballot paper recorded in favour of A and B are 1700 and 1900, respectively. The result of this second transfer would be as follows: A – 5550+1700 = 7250 B – 5850+1900 = 7750 In this illustration, B having obtained the minimum votes, that is, more than half of the valid votes, will be a successful candidate though he had secured fewer first preference votes than A.1 This process will be repeated again and again till a candidate secures more than half the valid votes. Until the relevant figures for the first census taken after the year „2026‟ have been published, the reference to the last preceding census be construed as a reference to the 1971 census. The
1

Total – 15,000

The Hindustan Times, 1969.

expression „population‟ in this Article means the population as ascertained at the previous census, that is, 1971 census. Oath by the President: According to Article 60, before entering upon his office, the President has to take an oath or an affirmation in the presence of the Chief Justice of India, or, in his absence, the senior most Judge of the Supreme Court available ‘to preserve, protect and defend the Constitution and the law and to devote himself to the service and well-being of the people of India.’ Term of office of the President: Article 56 says that the President shall hold office for a term of five years from the date on which he enters upon his office. Even after the expiry of his term he shall continue to hold office until his successor enters upon his office. He is also eligible for re-election. He may be elected for any number of terms. But the America after 22nd Amendment to the U.S.S. Constitution a person cannot be elected to the office of the President more than twice. The President in India may, however, resign his office before the expiry of his normal term of five years by writing to the Vice-President. He may be removed from his office for the violation of the Constitution by the process of Impeachment. Procedure for impeachment of the President: Article 61 of the Constitution lays down the procedure for the impeachment of the President. The President can be removed from his office by a process of impeachment for the „violation of the Constitution‟. The impeachment charge against him may be initiated by either House of Parliament. The charge must come in the form of a proposal contained in a resolution signed by not less than 1/4th of the total number of the members of the House and moved after giving at least 14 days‟ advance notice. Such a resolution must be passed by a majority of not less than 2/3rd of the total membership of the House. The charge is then investigation by the other House. The President has right to appear and to be represented at such investigation. If the other House after investigation passes a resolution by 2/3rd majority declaring that the charge is proved, such resolution shall have the effect of removing the President from his office from the date on which the resolution is so passed.

Privilege of the President: Article 361 of the Constitution guarantees the following privileges to the President: (1) The President shall not be answerable to any court for the answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise of those powers and duties. However, the conduct of the President may be brought under review by any court, tribunal or body appointed or designed by either Houses of Parliament for the investigation of the charge in impeachment proceedings. Thus the immunity afforded to the President will not restrict the right of any person to bring suit against the Government of India. (2) No criminal proceedings whatsoever shall be instituted and continued against the President in any court during the term of office. (3) No process for the arrest or imprisonment of the President shall be issued from any court during his term of office. (4) No civil proceedings in which relief is claimed against the President shall be instituted during his term of office in any court in respect of any act done or purporting to be done by him in his personal capacity whether before or after he had entered upon his office until (a) A notice in writing has been given to the President, (b) Two months have passed after the service of such notice, and, (c) The notice states the nature of proceedings, the cause of action, the name, residence and description of the party taking the proceedings and the relief claimed.

Powers of the President:
Executive Powers: The Constitution has conferred extensive executive powers on the President. The executive power of the Union of India is vested in him. He is the head of the Indian Republic. All executive functions are executed in the name of the President (Art. 77). He has power to appoint the Prime Minister and on his advice other Ministers of the Union, the Judges of the Supreme Court, and the High Courts, the Governors of the States, the Attorney-General, the Comptroller and Auditor-General, the Chairman and Members of the Public Service Commission, the Members of the Finance Commission and Official Commissions, Special Officer for Schedule Castes and Schedule Tribes, Commission to report on the administration of scheduled Areas, Commission to investigate into the conditions of backward classes, Special Officer for linguistic minorities. The above mentioned officials hold their office during the pleasure of the President. This means that he has the power to remove them from their post. This power is, however, to be exercised subject to the Constitution. It is, however, to be noted that he has to exercise his executive powers on the advice of the Council of Ministers.

Legislative Powers: The Lok Sabha can be dissolved by the President. This powers can be used y the President after due consultation with the Council of Ministers as the nature of the powers is formal. The assent of the President is vital as it enforces a bill to be a law despite being passed by the Parliament. If the Bill is not a money bill then it can be sent back to the Parliament for reconsideration. If the Parliament sends the bill for the assent of the President for the second time, he has to assent to it. Various ordinances can be promulgated when the parliament is not in session. The validity of these sessions is for 6 weeks from the date of conveying the same to the Parliament in the next session provided the Parliament approves it. Judiciary Powers: Not only that the President of India can appoint the Chief Justice of the Supreme Court, he can also appoint the other judges in due consultation with the Chief Justice. The dismissal of the judge by the President comes into effect if both the Houses of the Parliament have a consensus ad idem with 2/3rd majority. Emergency Powers: There are three kinds of emergencies when the President can exercise his powers. National Emergency: National emergency can take place in various scenarios like an armed rebellion, an outbreak of war. For instance: 1977 emergency for internal disturbance and 1962 emergency during Indo-China war. In other case, where the Prime minister and the Council of Ministers submit a written request for the same under Article 352 of the Indian Constitution and must be assented by the Parliament within a span of one month. 6 months is the period for imposition of this emergency and can be extended to another six months with the approval of the Parliament. State Emergency: This kind of emergency is known as the President‟s Rule which comes into existence when there is a failure in the constitutional machinery of the State. The Governor of the State needs to send a report for the proclamation of such an emergency and the President must be satisfied by the report of the Governor. The Parliament needs to approve it within 6 months for a span ranging between 6 months to 3 years under Article 356 of the Indian constitution. For instance: The Presidential rule was imposed in Karnataka on 9th October 2007. Financial Emergency: If there are any instances where the financial stability or an economic situation poses a danger to the country, the President can impose the financial emergency under Article 360 of the Indian constitution. The financial and the state emergencies continue to exist until revoked by the President.

Military Powers: The President is the Supreme Commander of the Defence Forces of the Country. He has powers to declare war and peace. However, the exercise of these powers by the President is “regulated by law”. The Parliament is empowered to regulate or control the exercise of the military powers by the President. The military power of the President is thus subordinate to his executive power which is exercisable by him on the advice of the Cabinet.

Diplomatic Powers: The President is the execute head of the country and needs to conclude all the treaties and agreements even when such duties are carried out by the Prime minister and his cabinet. The approval of the Parliament is essential in case of such treaties. The President is the whole and sole representative of the country on international forums and can receiver foreign dignitaries also.

A comparative Study:
Difference between Indian President and U.S.A President: Indian President 1. He is only a figurehead. The real executive power is vested in the Prime Minister. U.S.A President 1.He is real head of the executive.

2. The members of the cabinet are nominated 2. He appoints Prime Minister, leader of the by the President. Then they are called majority. Only the advice of the Prime secretaries, not Ministers. Minister, he appoints other ministers. In appointing the Ministers, he has been no choice, discretion. 3. He is not bound to follow the advice of the 3. He is bound to follow the advice of the cabinet. The President is Boss and Secretaries are his subordinates. cabinet. 4. The Cabinet makes the laws. The assent of the President is necessary. If he does not lie any bill, he may refuse to sign it, and send it for the reconsideration. After reconsideration, if the Bill is again presented for the assent of the President, he has been no right to withhold his assent. 5. He has been no vote power. 4. Doctrine of Separation of Powers strictly applied in America. The President is not a member of legislature. It is the duty of the Congress to make the laws.

5. He has been veto power.

6. He can dissolve the Loka Sabha only the 6. He cannot dissolve Legislature. advice of the Cabinet. 7. The term is four years.

8. Immunity: there is no such immunity to American President, either civil or criminal 8. Immunity: No criminal cases can be proceedings. E.g. Water Gate case against instituted against the President. Civil Nixon, Monica‟s case against Bill Clinton, proceedings can be instituted against etc. President, after giving a statutory notice u/s 80 of Civil Procedure Code. There is no 9. As a principle he is elected only direct election basis. But practically, he is elected immunity to civil proceedings. by direct elections. 9. He is elected by indirect election by a special process known as “Electoral 10. American President represents College”. Presidential Democracy. 7. The term is 5 years. 10. Our President represents Parliamentary Democracy.

11. He is very strong. 11. He is not too strong not too weak. A 12. The President of America combines in balanced position is given to him. himself the functions of the King and the 12. The President of India possesses the Prime Minister of England. equal characteristics of the King of Britain. 13. If the Bill is defeated, neither the President nor the Congress should resign. 13. If the Bill is defeated, the Council of Ministers should resign.

14. No Spoils system: in India there is no such system. Our President has been no power to appoint Administrative services of his choice. There is a separate of “Union Public Service” to appoint the Administrative 15. A person cannot function for more than Officers. two terms. 15. A person may be re-elected for many times.

14. Spoils system: the American President can appoint 20% of the Administrative services of his own choice.

The President is also vested with the power of appointing various executives. They are: 1. 2. 3. 4. 5. 6. 7. The Governors of the States The Attorney General The Chief Election Commissioner and the Election commissioner The Ambassadors and the High Commissioners to the other countries of the world The Chief Justice, the other justice of the Supreme Court and the High Courts The Chairman and the other members of the Union Public Service Commission The Auditor General and the Comptroller

The Arm forces also regard the President as the de jure commander of the arm forces. He is the one who can reduce the punishment of death sentence. President is also bestowed with the power of receiving the credentials of the various High commissioners and the Ambassadors of the foreign countries.

 The executive usually sets the agenda and is ultimately responsible for the overall
outcome of the state of affairs. Legislative usually vote in blocks and are usually directed by the house leadership. I would say that executive makes more day to day decisions and their decisions are more crucial. Legislative votes can be more "nuanced".  Executives are presented with issues that require decisions all day long. Harry Truman had a sign on his desk that said, "The Buck Stops Here" re-enforcing the notion that someone has to be accountable for the outcome of those decisions. Even seemingly small matters can have huge results.  Legislators pick and choose what issues they will get involved with. Then talk to others and come up with ideas to put into legislation. They make speeches and debate.

Conclusion:
President is the 'nominal' executive. He is also known as titular executive. He is the nominal head of a country (in countries like India, but not in USA.) His powers are very limited. He has a lot of powers, but just in title. Because, these powers can be put into practice only if the PM and the council of ministers advice him to do so. That is, the president can act ONLY according to the advice of Prime Minister and his council. In the case of countries like US, they follow the presidential system of government, where President has a lot of real powers than Prime Minister. Here, President is elected one. Constitution specifies that President has to act according to the advice of PM and council except in the cases of discretionary powers. This discretion happens in India because the Prime Minister in India is an elected representative whereas President is not.

In Indian constitution PM works as a "chief executive" of the country where as president of India is just a "rubber stamp". Indian constitution has not given much work to President; he works according to the suggestions of government. President of India cannot take any decision without the consent of respective ministry.

Bibliography:
Books Referred:
 The Constitutional Law of India, J.N. Pandey, 48th edition, Central Law Agency.  Indian Constitutional Law, Prof. M.P. Jain, sixth edition, Lexis Nexis Butterworths Wadhwa (Nagpur)  The Constitution of India „bare act‟, P.M. Bakshi, Universal publishers and co.  Constitutional Law, Ranbir Singh, 5th edition, Lexis Nexis Butterworths Wadhwa ( Nagpur)

websites:
www.google.com www.wikipedia.com www.legalservicesindia.com www.westlaw.com www.slideshare.com www.indiankanoon.com

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